5.  The applicant is an Icelandic national who was born in 1978 and lives in Reykjavik. She is a journalist, working for the newspaper DV. In its weekend issue of 31 August to 2 September 2007, DV published an article about a high-profile criminal case which was being investigated at the time, involving Mr Y and his wife, Mrs X. Mr Y was the director of a Christian rehabilitation centre called Byrgið (the Shelter), which he had founded in 1996 to help people dealing with drug, alcohol and gambling addictions. Accusations against Mr Y surfaced in December 2006 when a television news programme broadcast a story in which he was accused of sexually abusing several female patients at Byrgið and embezzling public funds which had been granted to it. Documents, including sexually explicit video recordings, appearing to substantiate the allegations against Mr Y, were shown on the television programme. After the programme had been aired, three women filed complaints with the police against Mr Y for sexual abuse while they had been patients at Byrgið. Mr Y and his wife were both suspects in the criminal investigation.
6.  The article published in DV contained interviews and comments made by Ms A, one of the women who had pressed charges against Mr Y, and Mr B, the financial manager at Byrgið and a close friend of Mr Y and Mrs X. The article was entitled “Satan’s attacks” and included, among other things, Ms A’s description of how Mrs X had been active in the so-called sex games organised by Mr Y, in which female patients at Byrgið had been manipulated and convinced to participate as they had been told that it was part of their healing process. According to Ms A, Mrs X had helped to seduce the women and had even sought sexual encounters with them by herself, without her husband. Ms A criticised the fact that Mrs X was at the time working as a teaching assistant in a school, stating “I am not a psychologist or a psychiatrist but this person is crazy. I cannot see that she has anything to offer as a teaching assistant or in any kind of relief work. I do not know what she is doing in this school. In the light of [Mr Y’s] fantasies about primary school girls, I don’t think it is appropriate that the one who hunts for him works in a primary school.”
7.  Mr B also stated that both Mr Y and Mrs X had sexually abused several patients of Byrgið and that he found it strange, considering Mrs X’s position, that she was allowed to work with children.
8.  The article also referred to comments made by the lawyer of Mrs X and Mr Y, who said that the accusations against the couple were absurd. He also said that it was very common that people had the legal status of suspect during an investigation, without later being indicted, so it was not fair to implicate Mrs X in any criminal activity. Moreover, neither of the two had broken the law and he did not think that an indictment would be issued in the case.
9.  The article also contained comments made by an officer of the police department dealing with the investigation. He confirmed that Mrs X had the legal status of a suspect during the investigation.
10.  On 28 February 2008 Mrs X instituted defamation proceedings against Ms A, Mr B and the applicant before the Reykjavik District Court. In her writ, in which she made the judicial claims set out below, she argued that the following statements published by DV amounted to libel, in breach of Articles 234, 235 and 236 of the Penal Code, and requested that they be declared null and void (dauð og ómerk) under Article 241 (1):
Judicial claim no. 1 [statements made and published by the applicant and (allegedly) Ms A]
a. “[Ms A] ... claims to have had sex with the couple.”
b. “[Ms A] ... says that [Mrs X] participated in sexual activities with her and [Mr Y].”
c. “[Ms A] says that [Mrs X] was active in her and [Mr Y’s] sexual games at first but later on [Mrs X] became very jealous and [Mr Y] no longer wanted her to participate.”
d. “She participated in our first times together.”
e. “Then she started calling me and sending me messages stating that she wanted to meet me alone.”
f. “[Ms A] says that [Mrs X] sought to have sexual encounters with her in private.”
g. “He lied to her, too ...”
h. “He also said that he was divorcing his wife.”
i. “... this person is crazy. I cannot see that she has anything to offer as a teaching assistant or in any kind of relief work. I do not know what she is doing in this school ... not appropriate that the one who hunts for him works in a primary school.”
j. “... had spread ugly stories about her. ‘His wife did it too. They would even come up with new stories every day.’”
Judicial claim no. 2 [statements made and published by Mr B and the applicant]
k. “They were being trained to be masters in lesbian sex. According to [Mr B] his wife participated in it.”
l. “According to [Mr B] ... she was fully aware of [Mr Y´s] abuse of the patients and she sometimes participated in the sexual games.”
m. “They both used tools and devices on them.”
n. “[Mr B] finds it odd that a woman in this position is working with children.”
11.  Mrs X requested that the applicant, Ms A and Mr B be punished. In addition she sought 3,000,000 Icelandic krónur (ISK) (corresponding approximately to 30,365 euros (EUR) at the time) plus interest in compensation for damages, an order under Article 241 (2) to pay her ISK 800,000 to cover the costs of publication in the press of the court’s reasons and conclusion in the defamation case, plus legal costs.
12.  Mrs X argued that the responsibility for the statements lay with Ms A and Mr B, as they had appeared by name as the interviewees, and also with the applicant as the author of the article.
13.  In her pleadings before the District Court, the applicant invoked the freedom of expression guaranteed under Article 73 of the Icelandic Constitution. She further relied on section 15 of the Printing Act no. 57/1956, under which the author of a statement was responsible for the publication of its content. The article had indicated the identity of the authors of the disputed statements, which had been quoted directly from Ms A and Mr B. The applicant could therefore not be held responsible as the author of the statements.
14.  The applicant further argued that the statements were true and accurate and that she should therefore be acquitted. Mrs X had been a suspect in a criminal investigation of sexual offences. Moreover, Mrs X had failed to substantiate her allegation that the applicant, who still believed the statements to be true, had intentionally acted in breach of the said provisions of the Penal Code.
15.  In her written pleadings before the District Court, Ms A denied having made the statements which had been attributed to her. However, when giving oral evidence before that court she stated that she did remember having had a conversation with a journalist from the newspaper DV about the Byrgið case, but that she could not remember what she had said.
16.  By a judgment of 4 December 2008 the District Court found that one statement, which had been attributed to Ms A (see item i. above), was defamatory but that it had not been proved that it originated verbatim from her. It therefore ordered only the applicant to pay Mrs X ISK 100,000 (approximately EUR 550 euros) in compensation for non-pecuniary damage. It also declared the statement null and void, but rejected all the other claims.
17.  Mrs X and the applicant both appealed against the District Court’s judgment to the Supreme Court. In her written submissions to the Supreme Court Ms A argued that she should not be held liable on the ground, among others, that the applicant had not rendered her statements correctly in the article.
18.  By a judgment of 18 February 2010 the Supreme Court upheld the decision of the District Court concerning Ms A and Mr B. It also upheld the District Court’s finding concerning the applicant’s liability, but only in respect of the latter part of the statement (“... not appropriate that the one who hunts for him works in a primary school.”). It ordered the applicant to pay Mrs X ISK 300,000 (approximately EUR 1,650) in compensation for non-pecuniary damage and ISK 100,000 for the costs of publishing the judgment, plus interest. Its judgment contained the following reasons:
“As stated above, the investigation, which gave rise to the statements that are being disputed in this case, ended with the Supreme Court judgment in case no. 334/2008. In that judgment, the conviction of [Mr Y] was based on, among other things, testimonies of witnesses who also testified that [Mrs X] had taken part in sexual activities with him and the female residents at the treatment centre, in a manner similar to the one that is described in the comments that were quoted from [Mr B] in items k. to m. It follows that it must be considered that those statements have been substantiated and their annulment will therefore not be raised under Article 241, cf. Article 235 of the Penal Code. Moreover, the statement in item n. in [Mrs X´s] claim for annulment contains a value judgment which does not violate the above-mentioned provisions of chapter XXV of the Penal Code. In accordance with the aforementioned, [Mrs X´s] claim for the annulment of those statements, which are quoted from [Mr B] and specified in items k. to n., is rejected.
In her testimony before the District Court, [the applicant] stated that when preparing the article she had had a telephone conversation with [Ms A]. The telephone call had been recorded but the recording had not been preserved. She claimed that the comments attributed to [Ms A] in the article had been correctly quoted. [Ms A] testified before the District Court that she vaguely remembered a conversation with a journalist from DV, discussing ‘just something about the Byrgið case’. However, she did not acknowledge having said what was referred to in items a. to j., but she was asked about each statement. When considering that the statements, which are quoted from [Ms A] in items a., b., c., d. and h., are, according to the District Court´s premises in the aforementioned criminal case, in substance largely in line with her testimony before the police shortly before the article appeared, and that the defendant acknowledged having discussed the Byrgið case with a journalist from DV, but could not state what she thought she had said to the journalist about the case, it must be considered proved that the statements in these items are attributable to her. The statements in items e., f., g., i. and j. are, on the other hand, not in line with the testimonies given by [Ms A] during the investigation of the case against [Mr Y]. It is therefore not possible to consider that [the applicant] has been able to prove that those statements were quoted from [Ms A].
By the Supreme Court judgment in case no. 334/2008, [Mr Y] was convicted, among other things, of having had sexual relations with [Ms A] while she was a patient at Byrgið. However, the testimony given by [Ms A] about [Mrs X´s] participation in their sexual activities did not form the basis for that conviction. Regardless of whether it has been successfully proven that the statements in items a. to d. in respect of this subject are true, it must be considered that the above-mentioned statements quoted from [Mr B], which discussed in general terms [Mrs X´s] involvement in sexual activities with her husband and the female patients of Byrgið, were considered proved. In this connection it cannot be found that those statements, which were quoted from [Ms A], were likely to further damage [Mrs X´s] honour. There are therefore no grounds to annul them under Article 241, cf. Article 235 of the Penal Code.
The content of the statements in items e., f., g., h. and j. do not fall within the scope of Article 234 or 235 of the Penal Code and [Mrs X´s] claim for their annulment is therefore rejected. The statement in item i. is twofold. The first part, which states ʽ... this person is crazy. I cannot see that she has anything to offer as a teaching assistant or in any kind of relief work. I do not know what she is doing in this school...ʼ, entails a value judgment which does not violate the above-mentioned provisions of chapter XXV of the Penal Code and it will therefore not be annulled. The latter part of the statement in item i., which states the following: ʽ... not appropriate that the one who hunts for him works in a primary schoolʼ is a different matter. These words indicated that [Mrs X] was guilty of criminal conduct, which has by no means been proven to be true. [Mrs X´s] claim for annulment is therefore accepted, with reference to Article 241, cf. Article 235 of the Penal Code.
As is stated above it has not been proved that the aforementioned statement in item i. was correctly quoted from [Ms A]. [The applicant] was adequately identified as the author of the article and is therefore liable for its content, under section 15 (1) of Act no. 57/1956. The statement contained a coarse insinuation against [Mrs X] about a criminal act. The statement appeared in a conspicuous manner in a widely‑read newspaper and was likely to affect the dignity and professional reputation of [Mrs X]. On the other hand, the effects which the aforementioned criminal case and the discussion about it must already have had in that respect cannot be overlooked. In the light of all this, [Mrs X] is awarded ISK 300,000 in non-pecuniary damages.
[The applicant] shall, with reference to Article 241 (2) of the Penal Code, be ordered to cover the costs of the publication of the judgment. [Mrs X] has not supported her claim for payment of costs with any data. A reasonable amount for the costs is decided to be ISK 100,000.”